Thank you, Mr. Speaker.
Call for a Mandatory Review Provision
Some Northwest Territories statutes contain provisions requiring a mandatory review of the legislation at set intervals of time, usually every five or ten years.
- Ms. Wendy Bisaro suggested that Bill 20 "is missing a clause requiring a review of the Act every 10 years."
The merit of including such a provision in legislation is that it sends a public message about the importance of keeping the legislation up to date and suitable for current circumstances. Unfortunately, such provisions can tie an Assembly to an expensive and time-consuming review, when one may not be necessary and there are other, more pressing, legislative priorities. Given that the Legislative Assembly has the prerogative, at any time, to review and amend its legislation, such a provision is not strictly necessary. For these reasons, committee did not adopt this suggestion.
What We Did
In addition to the general themes identified above, the committee was fortunate to receive detailed input on a number of specific clauses contained in Bill 20. Committee addressed many of these issues raised by stakeholders in motions to amend Bill 20.
Clause by Clause Review
The clause-by-clause review of Bill 20 was held on was held on October 25, 2018. The committee thanks the honourable Louis Sebert, Minister responsible for Public Engagement and Transparency, and members of his staff for their appearance before the committee.
At this meeting, the committee moved 19 separate motions to amend Bill 20. These motions, and the purpose of each, are identified below.
Minister Sebert concurred will all but three of the committee's motions. The motions for which there was no concurrence are also identified below.
Motion 1: To amend the English version of Bill 20 to change the word "Ombudsperson" to "Ombud" wherever it appears in the bill.
This makes "Ombud" the official title of the position.
Motion 2: To amend clause 6(3) of Bill 20 specify that any suspension of the Ombud occurring when the Legislative Assembly is not in session will only remain in effect until the conclusion of the next sitting of the Legislative Assembly.
As pointed out by the NWT Branch of the Canadian Bar Association, "the Commissioner, on recommendation of the Board of Management, should not be able to suspend the Ombudsperson without accountability to the Legislative Assembly." This amendment allows the Assembly to deal with the suspension at the next sitting, and is consistent with Ombud legislation in other jurisdictions such as Manitoba and Ontario.
Motion 3: To amend subclause 7(3) to change "Speaker" to "Board of Management."
Clause 7(3) provides for the appointment of an Acting Ombud, due to the resignation or absence of the incumbent Ombud. Committee received input from Ms. Bisaro suggesting that any appointments should be done only by the Legislative Assembly, and by the NWT Seniors' Society suggesting that any decision be made by way of a "supermajority" of votes, meaning a majority that is larger than fifty percent plus one.
The Legislative Assembly votes on appointments, such as the Ombud, Acting Ombud or Special Ombud, according to the Rules of the Legislative Assembly, which require a simple majority. Consequently, it would be outside the scope of Bill 20 for the committee to seek an amendment requiring a supermajority vote. Committee feels, however, that appointment by the Board of Management, rather than the Speaker alone, would require consideration of a number of viewpoints, rather than just one. That is the rationale for this amendment to the bill.
Committee notes that input on this provision was received from the Office of the Clerk of the Legislative Assembly, which has an interest in this legislation because it is responsible for the management of the Legislative Assembly's statutory officers. The Office of the Clerk indicated a preference for subclause 7(3), as originally drafted, for consistency with other statutory officer legislation and to allow the Speaker alone to appoint an acting Ombud when it is a matter of urgency. Given that acting and special appointments for the Languages Commissioner and Equal Pay Commissioner are made on the recommendation of the Board of Management, while others like the Information and Privacy Commissioner are made by the Speaker, and to be responsive to public concerns about the independence of the Ombud, committee decided to proceed with Motion 3.
Motion 4: To amend subclause 8(1) to change "Speaker" to "Board of Management."
Subclause 8(1) provides for the appointment of a Special Ombud. The rationale for this motion is the same as for Motion 3.
Motion 5: To amend subclause 15(1), which sets out the mandate of the Ombud.
Committee found this important clause densely worded and difficult to understand. Almost all Ombud legislation across Canada has a similar clause, and committee had seen examples in which the Ombud's mandate was more clearly communicated. Committee proposed a motion to improve the readability of the clause. Committee also wanted the mandate clause to contain a specific reference to policy. Committee holds the view that it is fully within the Ombud's mandate to consider and make recommendations on the application of GNWT policy. The reference was meant to add clarity by making this explicit.
Minister Sebert did not concur and the motion was defeated.
Motion 6: To amend Bill 20 by deleting subclause 16(2).
Subclause 16(2) provides for the Executive Council (Cabinet) to refer matters relating to the administration of an authority to the Ombud for investigation and report. Committee propose to delete this provision. In doing so, committee's intention is not to be mean-spirited. Cabinet has considerable resources at its disposal for investigating administrative concerns within government, including the Internal Audit Bureau in the Department of Finance. Given that the resources of the Ombud will not be unlimited, committee feels that those resources are, as a first priority, best used assisting people of the Northwest Territories with their concerns. Committee also notes that under Clause 16(1), the Legislative Assembly may refer a matter to the Ombud, which means that any Member, including Ministers, may move a motion asking the Assembly to refer a matter to the Ombud.
Motion 7: To amend Bill 20 by adding two new provisions after subclause 16(2).
This motion introduces a provision that allows municipalities or Indigenous governments to refer matters to the Ombud on a cost-recovery basis and to receive the Ombud's report directly.
Motion 8: To amend subclause 17(2).
Paragraph 17(1)(d) provides that the Ombud may not investigate a matter where the complainant has an existing right of appeal, until after that appeal has been exercised. Subclause 17(2) provides for an exception to this rule where the Ombud determines that it would be unreasonable to expect the complainant to pursue the avenue of appeal. The amendment proposed by committee gives the Ombud broader discretion in making this determination with respect to past actions by the complainant.
Motion 9: To amend subclause 17(3) which provides that the Ombud cannot investigate conduct occurring before the coming into force date of the Act.
Committee feels strongly that this temporal restriction on the Ombud's jurisdiction is overly restrictive and inconsistent with public expectation. Committee is concerned that, if the Ombud cannot investigate any conduct occurring prior to the start of the office, then they are unlikely to address many complaints during their first year of operation. This would likely frustrate both potential complainants and the Ombud, and set the wrong tone for this new service.
Committee discussed with the Minister the possibility of making the Ombud's jurisdiction retroactive to a specific date, but the Minister was not in a position to make such a determination without Cabinet approval.
Committee thus moved a motion to delete this subclause entirely. The Minister did not concur and the motion was defeated.
I would like to hand the reading over to the Member for Kam Lake. Thank you, Mr. Speaker.